Senator Dupuis: I would be honoured to answer questions from the bill’s sponsor.

Senator Dupuis: Thank you, Senator Clement, for your question. You interpreted the last paragraph of my intervention quite well, when I said that I invite the members of the Standing Senate Committee on Legal and Constitutional Affairs to carefully review the contents of the bill. It is 169 pages long, if memory serves, and it has 642 clauses. One of the important elements that we must examine is the degree of buy-in from both the common law and the civil law practitioners, the members of professional associations such as the bar or notary associations. We know that consultations were held in 2017 on this fourth harmonization act and that the process was initiated some years ago. I believe that we must do this work, and I invite the committee to undertake it.

(On motion of Senator Carignan, debate adjourned.)

Hon. Renée Dupuis: Honourable senators, today I rise in support of Bill S-11, a fourth act to harmonize federal law with the civil law of Quebec and to amend certain acts in order to ensure that each language version takes into account the common law and the civil law. The bill’s full title speaks to the substantial relationship within our judicial system between federal law and provincial law, which is to say, Quebec’s civil law and other provinces’ and territories’ common law. This form of bijuralism is unique to Canada, where two completely different legal traditions coexist within the same judicial system. They are the foundation of the system we have today.

This bill is a technical bill containing 642 clauses that amend some 50 federal acts. Contrary to what one might think upon reading Bill S-11, its content does not consist solely of random words. When used in various pieces of legislation, these words convey legal concepts. They convey the values that Parliament has endorsed following often arduous legislative debate on complex and sensitive social issues. As such, this bill treats words as more than interchangeable concepts.

The bill’s sponsor explained the content of the legislation, and her words have informed our reflection. I would like to draw your attention to one fundamental aspect, specifically that this bill refers to an element of our legal system that is an integral part of what it has become today, and I would like to briefly recall the historical elements that help explain why such a bill is currently before us.

Canadian bijuralism, as a subject of legal study, developed in the 20th century, but its origins lie in earlier historic events, some elements of which I found important to highlight.

The first element is the system of civil law governing mainly private rights, established by the French and applied in their colony of Quebec in the 17th century.

The second element is the Treaty of Paris, signed on February 10, 1763, which recognized the victory of the British over the French in 1759 at Quebec City and in 1760 at Montreal. This was the treaty by which France ceded to Britain its countries, territories and islands in America.

The third element is the Royal Proclamation of 1763, endorsed at the Privy Council in London by King George III, who imposed common law in his new colonies in the Americas.

The fourth element is the uncertainty that has persisted as to whether common law has abolished the application of French private law.

The fifth element refers to the uncertainty at the time regarding the new British regime’s ability to impose its law given the resistance it encountered in its colony. This resistance only compounded the discontent that was being expressed in the other British American colonies and that eventually led to the U.S. War of Independence.

The sixth element is the passage of the Quebec Act of 1774. Section VIII of that act, which is an act of the British Parliament, repealed part of the Royal Proclamation and re-established previous French laws regarding property and the rights of citizens in Quebec, while maintaining the common law in criminal matters, thereby formalizing the coexistence of the traditions of civil law and common law in a constitutional document.

The seventh element is the Quebec Act, which actually represents a political concession that the British felt they had to give the French, who did not recognize themselves in the legal regime, the common law tradition, which was completely foreign to them.

The eighth element is the civil law, which became an integral part of the Canadian Constitution; in other words, the Civil Code of Lower Canada, passed in 1865, became the first codification of this civil law and would serve as the main reference before being completely overhauled and replaced in 1991 with a new civil code that took effect in 1994. In the new version, a preliminary provision of the code states the following, and I quote:

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication.

The ninth element is the Constitution Act, 1867 which creates a federal system dividing legislative responsibilities between two levels of government, the federal and provincial levels.

The tenth element is the confirmation of the coexistence of the traditions of civil law and common law within the framework of the exclusive legislative powers attributed to the federal Parliament in the Constitution Act, 1867 over aspects of private law, such as marriage and divorce, alongside the exclusive jurisdiction given to provincial legislative assemblies to legislate on property and civil rights in the province.

Finally, the eleventh element is the federal government’s adoption of a policy to harmonize federal legislation with Quebec’s civil law in 1993. This policy reflects the complementarity between federal legislation and civil law when it comes to interpreting and applying federal legislation in Quebec and amending federal laws that existed in 1994 to adapt them to the new law concepts introduced after the comprehensive review of the Civil Code in 1994.

Honourable senators, I invite the members of the Standing Senate Committee on Legal and Constitutional Affairs to carefully review the 642 clauses of Bill S-11, because it deals with issues that are fundamental to us as we define the concepts and words that must reflect our constitutional system.

Thank you.